EXHIBIT 10.11
Amended and Restated Agreement
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This Amended and Restated Agreement is entered into as of this 15th day
of November 2001, between Parametric Technology Corporation, a Massachusetts
corporation (the "Company"), and Xxxx X. Xxxxxxxxxx ("Xxxxxxxxxx").
WHEREAS, Xxxxxxxxxx is the Executive Vice President, Americas Sales;
and
WHEREAS, to provide continued incentive for Xxxxxxxxxx to maintain
employment with the Company, the Company desires to make the following
arrangements with Xxxxxxxxxx concerning his termination of employment.
NOW, THEREFORE, the Company and Xxxxxxxxxx hereby agree as follows:
1. Termination Notice. The Company agrees that it may not terminate the
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employment of Xxxxxxxxxx unless (i) such termination is for Cause (as defined
below) or (ii) the Company has delivered to Xxxxxxxxxx a written notice of such
termination (the "Termination Notice") at least six months in advance of the
termination date. The duties of Xxxxxxxxxx during the period from the date of
delivery of a Termination Notice until the termination of his employment shall
be as determined by the Board of Directors or the Chief Executive Officer.
2. Salary. During the period from the date of delivery of the
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Termination Notice (the "Notice Date") until the earlier of (i) the date six
months after the Notice Date or (ii) the date Xxxxxxxxxx commences employment
with another company or organization, the Company shall pay to Xxxxxxxxxx a
salary that is equal, on an annualized basis, to the highest annual salary
(excluding any bonuses) in effect with respect to Xxxxxxxxxx during the
six-month period immediately preceding the Termination Notice.
3. Stock Options. Effective upon a Change in Control (as defined below)
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of the Company, all stock options granted to Xxxxxxxxxx and then outstanding
under any Stock Option Plan (as defined below) of the Company shall become
exercisable in full, notwithstanding any vesting schedule or other provisions to
the contrary in the agreements evidencing such options; and the Company and
Xxxxxxxxxx hereby agree that such option agreements are hereby and will be
deemed amended to give effect to this provision.
4. Definitions.
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(a) A termination by the Company of Xxxxxxxxxx'x employment for
"Cause" shall mean termination (i) for Xxxxxxxxxx'x willful and continued
failure to substantially perform his duties to the Company (other than any such
failure resulting from Xxxxxxxxxx'x incapacity due to physical or mental
illness), provided that (a) the Company has delivered a written demand for
substantial performance to Xxxxxxxxxx specifically identifying the manner in
which the Company believes that Xxxxxxxxxx has not substantially performed his
duties, and (b) Xxxxxxxxxx has not cured such failure within 30 days after such
demand, (ii) for willful conduct by Xxxxxxxxxx which is demonstrably and
materially injurious to the Company, or (iii) for Xxxxxxxxxx'x willful violation
of any material provision of any confidentiality, nondisclosure, assignment of
invention, noncompetition or similar agreement entered into by Xxxxxxxxxx in
connection with his employment by the Company. For purposes of this paragraph,
no act or failure to act on Xxxxxxxxxx'x part shall be deemed "willful" unless
done or omitted to be done by Xxxxxxxxxx not in good faith and without
reasonable belief that his action or omission was in the best interests of the
Company.
(b) A "Change in Control" of the Company shall mean the occurrence
of any of the following events: (i) any "person", as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (other than the Company, any trustee or other fiduciary
holding securities under an employee benefit plan of the Company, or any
corporation owned directly or indirectly by the stockholders of the Company
in substantially the same proportion as their ownership of stock in the Company)
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
50% or more of the combined voting power of the Company's then outstanding
securities (other than as a result of acquisitions of such securities from the
Company); (ii) individuals who, as of the date hereof, constitute the Board of
Directors of the Company (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board, provided that any person becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board (other than an
election or nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of the directors of the Company) shall be, for purposes of this
Agreement, considered to be a member of the Incumbent Board; (iii) the
stockholders of the Company approve a merger or
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consolidation of the Company with any other corporation, other than (A) a merger
or consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity (including any person that,
as a result of such transaction, owns all or substantially all of the Company's
assets either directly or through one or more subsidiaries) outstanding
immediately after such merger or consolidation or (B) a merger or consolidation
effected to implement a recapitalization of the Company (or similar transaction)
in which no "person" (as defined above) acquires more than 20% of the combined
voting power of the Company's then outstanding securities; or (iv) the
stockholders of the Company approve a plan of complete liquidation of the
Company.
(c) A "Stock Option Plan" of the Company shall mean any stock option
or equity compensation plan of the Company in effect at any time, including
without limitation the 1987 Incentive Stock Option Plan, the 1997 Incentive
Stock Option Plan, the 1997 Non-statutory Stock Option Plan and the 2000 Equity
Incentive Plan.
5. Term. This Agreement shall continue in effect until February 28,
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2003, unless extended by the mutual written consent of the Company and
Xxxxxxxxxx.
6. Successors.
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(a) This Agreement is personal to Xxxxxxxxxx and without the prior
written consent of the Company shall not be assignable by Xxxxxxxxxx otherwise
than by will or the laws of descent and distribution.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
defined above and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement.
7. Miscellaneous.
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(a) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts, without reference to
principles of conflict of laws.
(b) This Agreement may not be amended or modified otherwise than by
a written agreement executed by the parties hereto or their respective
successors and legal representatives.
(c) All notices and other communications hereunder shall be in
writing and shall be delivered by hand delivery, by a reputable overnight
courier service, or by registered or certified mail, return receipt requested,
postage prepaid, in each case addressed as follows:
If to the Company:
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Parametric Technology Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Senior Vice President - General Counsel
If to Xxxxxxxxxx:
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Xxxx X. Xxxxxxxxxx
00 Xxxxxxxx Xxxxxx, #0
Xxxxxx, XX 00000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Any notice or communication shall be deemed to
be delivered upon the date of hand delivery, one day following delivery to such
overnight courier service, or three days following mailing by registered or
certified mail.
EXECUTED as of the date first written above.
PARAMETRIC TECHNOLOGY CORPORATION
By: /s/ C. Xxxxxxx Xxxxxxxx
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C. Xxxxxxx Xxxxxxxx
Chief Executive Officer and President
/s/ Xxxx X. Xxxxxxxxxx
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Xxxx X. Xxxxxxxxxx
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